Newsletter
Apr 23, 2009
Immigration Update: Immigration News You Can Use - April 2009
Headlines
1. New I-9 Form Goes Into Effect – The new form, which took effect April 3, 2009, reflects the Department of Homeland Security’s (DHS) amended regulations. A new Handbook for Employers has also been provided by DHS.
2. E-Verify Federal Contractor Rule Delayed Until June 30 – The federal government has extended, for a third time, the effective date of the E-Verify requirement for federal contractors. The rule is now set to take effect on June 30, 2009.
3. Nebraska to Require Use of E-Verify – On April 8, 2009, Nebraska Governor Dave Heineman signed into law a bill that will require public employers, state and local government contractors, and employers receiving state tax incentives to use E-Verify.
4. Illinois E-Verify Statute Overturned – Illinois cannot “dictate to Congress the standards that federal programs must meet.”
5. USCIS Responds to Ombudsman’s E-Verify Recommendations – United States Citizenship and Immigration Services (USCIS) agrees with most of the recommendations for improvement based on the E-Verify experience in Arizona.
6. USCIS Continues to Accept FY2010 H-1B Petitions – On April 8, 2009, USCIS announced that it has not yet received the necessary number of petitions to satisfy either the regular or master’s degree cap.
7. H-2A/H-2B: Interpretation of FLSA on Relocation Expenses Withdrawn – The now-withdrawn interpretation was that the Fair Labor Standards Act (FLSA) and its implementing regulations did not require employers to reimburse workers under the H-2A and H-2B programs for relocation expenses, even when such costs would result in the workers being paid less than the minimum wage.
8. Visa Categories Retrogress; Many Categories Unavailable – The employment third preference Other Worker cut-off date has retrogressed (and visas are therefore unavailable) for all countries in order to hold the issuance level within the annual limit.
9. E-Verify, EB-5, Religious Worker, and Conrad 30 Programs Extended to September 30 – Congress has extended four immigration programs through September 30, 2009.
10. Deferred Enforced Departure (DED) Extended for Liberians – The previous DED grant expired on March 31, 2009; DED has been extended for 12 months; work authorization has been automatically extended for six months.
11. Court Rules on Concurrent Filings for Religious Workers – The U.S. District Court for the Western District of Washington ruled, in Gabriel Ruiz-Diaz, et al. v. United States of America , et al., that a USCIS regulation is “unreasonable and impermissible.”
Details...
1. New I-9 Form Goes Into Effect
The new I-9 Employment Eligibility Verification Form (I-9) is available here. The new form, which took effect April 3, 2009, reflects the DHS’s amended regulations governing the types of acceptable documents and receipts that employees may present to their employers for employment authorization verification.
An updated version of the I-9 Handbook for Employers also has been released. The new handbook includes instructions on completing the form and is available here. Note that by operation of USCIS regulations, the instructions to a form become part of the regulation and are therefore binding. This is a good reason for employers to study the instructions carefully.
2. E-Verify Federal Contractor Rule Delayed Until June 30
The federal government has extended, for a third time, the effective date of the E-Verify requirement for federal contractors. The regulation is now set to take effect on June 30, 2009. The effective date is being delayed to give the Obama Administration adequate opportunity to review the regulation, which was originally scheduled to be implemented on
January 15, 2009.
For a history of the relevant regulation and its delays, see our alerts: E-Verify Rule for Federal Contractors Suspended Until May 21, 2009; E-Verify Rule for Federal Contractors On Hold Until February 20, 2009; Federal Contractors Required to Use E-Verify Beginning in January 2009; and Federal Contractors to be Required to Use E-Verify.
3. Nebraska to Require Use of E-Verify
On April 8, 2009, Nebraska Governor Dave Heineman signed into law a bill that will require public employers, state and local government contractors, and employers receiving certain state tax incentives to use E-Verify. The new law will take effect on October 1, 2009.
The Nebraska law limits applicability of the E-Verify requirement for government contractors to those contracts entered into on or after October 1, 2009. Those required to use E-Verify must use the system for new hires who physically perform services in the state.
The law will require use of E-Verify by employers receiving tax incentives under the Nebraska Advantage Rural Development Act, the Nebraska Advantage Act, the Nebraska Advantage Research and Development Act, and/or the Nebraska Advantage Microenterprise Tax Credit Act.
The law specifically contemplates expanding the E-Verify requirement to all Nebraska employers, requiring that the Nebraska Department of Labor report to the Nebraska Legislature no later than December 1, 2011 on the use of E-Verify by private employers.
The text of the new law is available here.
4. Illinois E-Verify Statute Overturned
The U.S. District Court for the Central District of Illinois has overturned a statute that prohibited employers from enrolling in any employment eligibility verification systems “until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employers within 3 days, unless otherwise required by federal law.”
The court said that Illinois’s statute “frustrates Congress’ purpose by prohibiting Illinois employers from participating in the Federal Program unless the Federal Program meets Illinois’s standard for accuracy and speed.” Illinois cannot “dictate to Congress the standards that federal programs must meet,” the court said, noting that “this clearly frustrates the Congressional purpose of making the Federal Program available to all employers. The Illinois Act is invalid under the Supremacy Clause.”
The court noted that Illinois had argued that its statute did not frustrate the federal employment verification program because Congress had established it as a test program, and the federal government has been able to test the program for years. “This is no answer,” said the court. “Even if Congress established the Federal Program as a test program, Congress is entitled to set the terms of the testing and the length of testing, not Illinois. Congress determined that all employers in the fifty states would be allowed to participate. Illinois cannot say no, or require the federal government to meet Illinois’ standards.”
The court concluded: “Section 12(a) of Illinois Public Act 95-138 is hereby declared to be invalid in violation of the Supremacy Clause of the United States Constitution, and the State of Illinois is permanently enjoined from enforcing this invalid act. All pending motions are denied as moot.”
The case is available here.
5. USCIS Responds to Ombudsman’s E-Verify Recommendations
USCIS recently responded to the recommendations made by its Ombudsman in the Ombudsman’s report on the E-Verify experience in Arizona. In the response, USCIS agrees with most of the recommendations for improvement and states that it has taken steps toward improving in the following ways:
• USCIS is working to simplify the language used in all E-Verify instructions and supporting documentation;
• USCIS has made certain registration and operational documents publicly available on-line for review by prospective E-Verify end-users and employees. It will work to make additional documentation available to the public, including portions of the E-Verify training program;
• USCIS has worked to ensure that its education and outreach efforts reach small business communities; and
• USCIS is working to develop and add a tickler/calendar system into E-Verify capable of issuing timely system prompts to employers to advise them of their next appropriate course of action for each specific open and unresolved tentative non-confirmations (TNCs).
The Ombudsman report also recommended that DHS announce as a stated goal an intention to replace the current Form I-9 process with E-Verify. USCIS responded to this recommendation, indicating that this would require a statutory change. USCIS indicated, however, that it is working to develop an electronic version of the Form I-9 that would eliminate the need to key I-9 information into the E-Verify system; the USCIS electronic I-9 would interface with the E-Verify system, allowing employers to submit a new hire’s information as an E-Verify query with the click of a button.
The Ombudsman’s recommendations are available here. USCIS’s response is available here.
6. USCIS Continues to Accept FY2010 H-1B Petitions
On April 8, 2009, USCIS announced that it will continue to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap, as USCIS has not yet received the necessary number of petitions to satisfy either the regular or master’s degree cap. USCIS has received almost half the petitions needed to meet the FY2010 regular cap of 65,000, and has received close to the number of petitions necessary to meet the 20,000 U.S. master’s degree or higher educational exemption cap.
When USCIS receives a sufficient number of petitions to reach the respective caps, USCIS will issue another announcement to indicate that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. USCIS will then conduct a lottery, including only those petitions received on the final receipt date, to determine which are selected for the final few available numbers. USCIS will base the final receipt date for each petition on the date that USCIS physically receives the petition and not the date that the petition is postmarked.
Therefore, it is critical for employers to file any remaining cap-subject H-1B petitions as soon as possible to ensure the earliest possible final receipt date for inclusion in this year’s cap.
As neither the regular nor master’s caps were reached within the first five (5) business days of availability, USCIS will receipt and process all cap-subject H-1B petitions filed from April 1 through April 7.
Recent updates from USCIS are available from both here and here.
H-1B employers receiving TARP funding. Meanwhile, USCIS has announced additional H-1B requirements for employers receiving Troubled Asset Relief Program (TARP) funding before hiring H-1B specialty occupation workers. The new “Employ American Workers Act” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on February 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the DOL when filing the Labor Condition Application (LCA).
EAWA applies to any LCA and/or H-1B petition filed on or after February 17, 2009. EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.
The USCIS notice is available here. USCIS has issued a related Q&A document, which is available here.
Revised Form I-129. USCIS has revised Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS has posted this form here.
7. H-2A/H-2B: Interpretation of FLSA on Relocation Expenses Withdrawn
Effective March 26, 2009, the DOL withdrew an interpretation of the FLSA published on December 18 and 19, 2008. The interpretation had indicated that the FLSA and its implementing regulations did not require employers to reimburse workers under the H-2A and H-2B nonimmigrant visa programs, respectively, for relocation expenses, even when such costs would result in the workers being paid less than the minimum wage. This interpretation was withdrawn for further consideration by the DOL and “may not be relied upon as a statement of agency policy.”
The notice, which was published in the Federal Register on March 26, 2009, is available here.
8. Visa Categories Retrogress; Third Preference Categories Unavailable
Because of high adjustment of status demand, the Department of State said it has been necessary to retrogress the employment third preference cut-off dates. In April 2008, the cut-off date retrogressed to March 1, 2003, to help ensure that future demand would be reduced significantly. Further retrogression occurred in May 2009, with third preference categories for all nationalities becoming unavailable.
During the past year, many preference categories have experienced steady and sometimes rapid cut-off date movement. Such action is normally followed by an increase in applicant demand. Heavy applicant demand for numbers in some categories requires cut-off date movements to slow, stop, or even retrogress to hold visa use within the applicable annual numerical limits. It is expected that the recent retrogression will be only temporary in nature, pending the start of the new fiscal year in October.
The Visa Bulletin for May 2009 is available here.
9. E-Verify, EB-5, Religious Worker, and Conrad 30 Programs Extended to September 30
Congress recently extended until September 30, 2009 four immigration programs: E-Verify, the EB-5 immigrant investor pilot program, the religious workers program, and the Conrad State 30 program. The first two provisions were extended as part of the 2009 Omnibus Appropriations law in early March; the other two provisions were extended in a separate bill (H.R. 1127) in mid-March.
The E-Verify program allows employers to electronically verify the work eligibility of new workers. The EB-5 pilot program allows immigrant investors to invest in “regional centers” around the country and thereby obtain a green card. The religious workers program allows certain foreign religious workers to obtain green cards. The Conrad State 30 program allows certain foreign doctors to get a green card by working in medically underserved areas.
The USCIS announcement is available here.
10. Deferred Enforced Departure Extended for Liberians
On March 20, 2009, the White House issued a memorandum deferring for 12 months the removal of any eligible Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who is under a grant of DED as of March 31, 2009. The previous DED grant expired on March 31, 2009. Work authorization for those Liberians granted DED has been automatically extended for six months (until September 30, 2009). To obtain an employment authorization document (EAD card) valid for the remainder of the DED grant, individuals will be required to submit an application on Form I-765.
The memorandum is available here. A related Q&A document is available here.
11. Court Rules on Concurrent Filings for Religious Workers
The U.S. District Court for the Western District of Washington recently ruled, in Gabriel Ruiz-Diaz, et al. v. United States of America , et al., that a U.S. Citizenship and Immigration Services (USCIS) regulation is “unreasonable and impermissible.” The challenged regulation, 8 CFR § 245.2(a)(2)(i)(B), permits some people to file a visa petition and an application for adjustment of status concurrently while requiring others, including religious workers, to wait until USCIS has approved the employer’s visa petition before filing their application for adjustment of status. The court found that “the Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for adjustment of status based on the regulation barring religious workers from concurrent filing.”
The court did not evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act.
Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the United States as adjustment-of-status applicants while the green card process is pending. At present, the I-360 approval process is lengthy due in part to the need to conduct a site investigation on each filing. Because religious workers are ineligible to file the adjustment application until the I-360 is approved, many religious workers run out of time in R visa status and must depart the United States before they become eligible to file the adjustment application.
The case is available here.
For more information, please contact the Seyfarth attorney with whom you work, or any Business Immigration attorney on our website.